‘well-regulated militia,’ not a private citizen militia
What has become known as Assault Style Weapons:
Justice Scalia wrote in 2008 in District of Colombia v. Heller; the right to own a gun is “not unlimited.” For that reason, the Supreme Court held that state and federal authorities can bar firearms from schools and public buildings, while the people remain free to prohibit what Scalia called “dangerous and unusual weapons.”
Private Citizens are not Militias:
Adrian Fontes is a Democratic candidate for Secretary of State in Arizona and the former Maricopa County Recorder. His history includes being a U.S. Marine Marksmanship Instructor. I know a lot about the third point and maybe someone can enlighten us on the first two points.
Adrian has some talking points for 2nd Amendment absolutists.
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 2nd Amendment
The absolutists want you to know the facts. If it is not spelled out in the text of the Constitution, “the government has no authority to do it.”
If you do not believe the Constitution is a living document and are an originalist, that can be true. The 2nd amendment’s language came after the U.S. Constitution. The Constitution already defined a Militia’s place in the new country.
A little Enlightenment:
Article I, Section 8 is the portion of the constitution spelling out what the government has the authority to do. Here is what it says Congress may do:
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; Article I, Section 8, Clause 15.
Fontes: “The Militia, in the context of our Constitution, is enforcing the laws of the Union. In other words. militias work for the government, not some fantasy.”
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; Article 1, Section 8, Clause 16.
Notice the words “Service of the United States” and “Congress.”
In Review:
So, yes the banning of assault style weapons is legal in the US. The other part of this is a bullet-spewing-weapon owner is not a militia. Article 1 Section 8 Clauses 15 and 16 explains what constitutes a militia. Claiming you are a militia does not entitle you to own an assault style weapon or to live a fantasy.
More Information:
The phrase ‘well-regulated militia’ seems (to me) to be a very antique expression.
The Minutemen of the American Revolution were in some sense such, if not actually a rabble. And then came the Continental Army under Geo Washington which fought the Revolution (with the help of Minutemen?), which became ‘The Legion of the US’ after the Revolutionary War was concluded, mainly deployed to fight Native Americans.
So who knows what the authors of the Constitution were thinking? Not necessarily Tony Scalia.
As I have noted often, the closest we have come is under Title 10 of the US Code, establishing an ‘unorganized militia’ consisting of all US male citizens of a certain age range. That was intended, apparently, to encourage firearms training/familiarization and legitimize the military draft. It certainly did not establish a ‘well-regulated militia’, but that may be what the National Guard is all about. Who knows?
I suppose the main problem here is that the terms ‘unorganized militia’ and ‘well-regulated militia’ are clearly contradictory, which does not support the premise of the 2nd Amendment.
The US evidently has some/many so-called ‘militias’.
There is no evidence that any of them can be considered ‘regulated’ at all, let alone ‘well-regulated’.
The National Guard can presumably be considered well-regulated. It is largely under federal control, but not entirely, and can be ‘nationalized’ whenever the President orders it to be so. It is really an arm of the (federal) US military, for most purposes.
Fred:
And what else have you learned?
Are you suggesting that the ‘well-regulated militia’ is in fact the US military? I suppose that is entirely possible, in the context of the Constitution.
Fred:
So, we should ignore Scalia’s Heller’s decision which states what a community can and some have done and held up in court.
District of Columbia v. Heller
(The federal guv’mint exercises considerable civil authority over the District of Columbia. In that sense, this was a narrow SC decision that can be seen to focus on the right to bear arms in Washington DC. I think it was a goofy decision, but I think Scalia was a crank. So that’s that.)
Fred:
Bluntly, with regard to bullet-spewing-weapons; it does not matter what you think. The courts have upheld Heller and they have decided for communities banning assault-type weapons. It is not a narrow decision only dealing with D.C. Heller versus D.C.
So a number of years ago I read a Royal study about the high number of young men murdering each other in Scotland which concluded that a primary cause was ready access to knives. Young men are going to fight to settle disputes and will use whatever technology is available to prevail— if knives and guns were banned, then it would be clubs or rocks. This is deplorable but it is not going to change in any living person’s lifetime. The carnage can be lessened by limiting the available technology— I believe a lot of places prohibit switchblade knives, brass knuckles, etc but not guns because of the Second Amendment and the control that a small number of gun enthusiasts have over the GOP through both campaign contributions and primaries. A local GOP primary election for a state government legislative seat involved two well funded candidates airing seemingly endless television ads. One involved an obese emergency room physician fondling an assault style weapon while positing that he knew an emergency when he saw it and the far left socialists ( in Indiana mind you) were the emergency. The other candidates ad checked the same boxes but he was carrying a hunting shotgun in his ad and only said he would defend the Second Amendment. As you might imagine the assault rifle guy won the primary with all of 13% of eligible voters participating. Unless and until GOP voters recognize that the Republican candidates are not representing them any more ( I would argue less) than the Democratic candidates, we will simply have to live with the increasing risk of dying by gun whether it is a night out at a tavern or restaurant, at the supermarket, at church, at work or school or driving down the interstate. Republicans sure have made America Great Again.
Terry
Two communities I am aware of and know have already banned assault – type weapons which was stated in the Heller by Scalia decision. It has been tested in court and affirmed. The example in the beginning of what you say is an excuse to do nothing. The example is naive.
Dobbs
“who knows?”
well, i certainly don’t, and neither apparently do you.
what people, including Courts, have said and done in the past is informative but not binding. What is needed is a way to solve the present problem.
You are right that State militias are seen as, and are, effectively part of the Federal army and government.
Which is what some people, very many people, fear, and why they block gun control. Offering them the chance to form their own means, under their own control, to take assault weapons off the streets, and legally out of the hands of dangerous people, might satisfy botht he 2nd amendment absolutists, and the people who are hoping to stop mass murders.
I see no reason this cannot be done legally. I think that under Scalia, even, local governments CAN pass laws “regulating” gun ownership and carrying guns in public. All we need to do is give them an opportunity to do it themselves, for themselves. What I see instead is two sides each insisting they “know what the law is, and means.” therefor nothing is done. I am suggesting what I think may be a way for both sides to get what they think they need.
I have made various further comments here that have been expunged.
Run & I disagree on the Heller decision, which I find very narrow.
You would agree with Run. I think Scalia was a crank, and there was ample evidence of this.
Fred
i agree with you about Scalia. I am trying very carefully to not disagree with anyone. My comments have also been expunged.
Somewhere in here i said that I don’t think what anyone said or did in the past, though informative, is determinative. Law as a practical matter needs some reliability, but it also needs to change to meet current needs without violating permanent rights. I think this might be complicated, but fairly simple from my point of view, though there are always disagreements and that is what the courts are supposed to be about. But I have never seen a Court that did not substitute its own ideas for “the law” when it could get away with it. The current SC has gone way too far, and we need a way to “check and balance” it. Mneuvering around loopholes or ambiguous language will do for awhile. Constutional amendment is hard. We should try it, but not if we are sure to lose.
Elsewhere near here I have mad a proposal that should work, but probably will not even be thought about, much less tried. Anyway, be a little careful what you think other people think.
In the Heller decision Scalia appears to have de-coupled the 2nd Amendment from the ‘well-regulated militia’ clause. The English Bill of Rights does NOT tie the right to ‘defence’, but to personal protection, which was what the Heller case was about.
And English common-law has jurisdiction in American jurisprudence.
Nonetheless, I think it was a stretch. Our 2nd Amendment clearly ties the right to bear arms to participation in some military organization.
nothing is “clearly” except in the mind of the beholder.
i don’t know just how military the original “militias” were. i got the impression they were just guys who knew how to use guns…almost everybody in America at that time. who could be called out by the local authority to act is a quasi military function.
i am proposing something more well regulated than that. in fact “regulated” by the government in return for certain benefits..including being allowed to own a registered, properly stored, military type weapon. this “militia” would be run by it’s own members subject to that government regulation… which would not be odious, and since everybody is watching, not preparing to take their guns away or otherwise establish a tyranny. because their members would be watching each other, an insane shooter would be unlikely to emerge from aong them… and non members would NOT be allowed to own or carry military type weapons. there are details to iron out, and likely unanticipated details that may arise. but it could end the current impasse, which no one is happy with.
There is some antiquated/sloppy language in the Constitution.
Go figure!
‘Militia’ may in effect now be ‘the nation’s military forces’.
Only originalists are obsessed about this. The rest of us may only be confused.
If Scalia was ignoring the ‘well-regulated militia’ clause in the 2nd Amendment, he was focusing on the ‘personal defence’ aspects of the British ‘right to bear arms for defence’. That the framers may have intended that the only way a ‘right to bear arms’ was to apply was for military purposes, he simply ignored that without explanation.
Sloppy language by the framers? To be left to future interpretation? Sure!
Was Scalia correct to do this? I think not.
The phrasing of the 2nd Amendment should be taken to supercede the ‘right to bear arms for defence’ in the British Bill of Rights.
It is to apply ONLY to ‘national defense’. That is what the framers were getting at. (This has nothing to do with the presumed right to hunt animals with firearms – this is such an obvious use of firearms that it was not even considered in the Constitution.)
“what people, including Courts, have said and done in the past is informative but not binding. “
Until a new SCOTUS decision or the Feds passing new legislation, the Heller decision is binding. Scalia did leave a loop hole covering dangerous and unusual weapons.
Courts have upheld the banning of assault-type weapons in certain parts of the country. Also, as much as Fred would like to claim differently, the SCOTUS Heller decision is binding to all states.
@run,
“Scalia did leave a loop hole covering dangerous and unusual weapons.”
I’ve operated a variety of different firearms, from a black powder pistol to a 12 gauge shotgun. I would describe them as dangerous, it the sense that they are dangerous to anything and anyone they are pointed at.
I’ve never operated a machine gun or pistol, or an assault rifle. In the sense that firearms have commonly been used for hunting, target practice and home defense, I’d describe machine gun, machine pistols and assault rifles as “unusual weapons.”
The problem with Scalia’s language is that, like Lewis Carroll’s Humpty-Dumpty, a word means exactly what Scalia says it means, neither more nor less. And like Humpty-Dumpty, Scalia is dead.
I’ve operated most of the firearms you mention, and more. So what.
In the US Army, in uniform. M79 grenade launchers, M2 (.50 caliber) & M60 (7.62 mm) machine guns, various mortars, a recoilless rifle or two. They do a lot of damage, potentially cause a lot of fatalities. That’s what infantry soldiers do. (I was trained as such, never served in combat.)
So, I guess I have some familiarity with the equipment, if no particular expertise.
Run
I probably used the wrong word. the law is binding…as far as the law is concerned.
I meant it is not binding on our thoughts. as you point out, the SC can decide it out of existence. the congress can find a way around it, the president can just ignore it.
the people can change it.
Dred Scott was “binding”. Until A. Lincoln found a way around it.
Run
I think you said Scalia allowed communities to ban military guns… so what are we waiting for?
A couple of things: First the US did adopt English common law— as it existed in 1680 I believe— and the beauty of the common law is that it changes. And it is all well and good to say what communities can do without running afoul of the United States Constitution, but that is almost certainly going to change as a result of a pending decision in a case challenging NYC’s permitting process and does no good in States where the GOP legislature has taken options away from local communities. The problem is the GOP— nuff said.
Terry;
Thank you for the comment. Laws can be changed. Challenging permitting process will upend community ordinances? How so? I am curious.
Terry
does that mean British common law 1618 applies to abortion rights?
or can the Court change the law, or change the law back? willy nilly.
I am arguing…not that the Court would agree with me…that the law should reflect the will of the people, and the people should not take each other’s rights away. I realize that is still a can of worms, but I still don’t like “majority rules” or letting the SC make law, despite their pious claims of not doing exactly that. In other words, I am looking for an answer and not that much interested in what they said in Europe in 1613 or Philadelphia in 1788, except insofar as it sheds light and not insofar as “we are bound” by what they said.
nuff said is snuff said to thought and progress. i think all the people here want progress…more or less in the same direction. I don’t think their way of getting there is working.
Even binding in law depends on the judge making the decision. Roe was binding in law until it wasn’t.
Jane
yep.
Jane:
Rules can not be interpreted, laws can be interpreted. So yes, you are correct. Here they wish to change the law due to reasons they believe are legitimate.
does this constitute a threat on the president?
Kyle Rittenhouse posts video of himself firing off a slew of bullets from an automatic firearm, declaring: ‘Joe Biden, you’re not coming for our guns’
Provocative new ad campaign highlights strict hunting rules to push for better gun control
Boston Globe – June 8